Will Creeley, a lawyer with the Foundation for Individual Rights in Education, says that the vast majority of colleges and universities in the country maintain some version of a speech code. FIRE has found only 12 schools that have no speech code. Among the no-code schools are Dartmouth College, the University of Pennsylvania, and William & Mary.
"Over 70 percent of [public and private schools monitored by FIRE] maintain restrictions on speech that would not stand if challenged in court based on relevant precedents," estimates Mr. Creeley. Rather than teaching the fundamentals of free speech and tolerance of offensive messages, he says, most schools are telling students they have a responsibility to stop hate speech, to engage in censorship.
"We have a saying here, if you go four years to a university or college and you are not once offended, you should ask for your money back," he says. "We feel there is inherent value in having your most deeply held beliefs tested."
Professor Wells, at the University of Missouri, agrees. She says universities are risk-averse and believe speech codes are a magic bullet: "Having a First Amendment is much harder than you think. We tend to view the First Amendment as a rights-giving instrument. But we really ought to see the First Amendment as providing us the space to have these really important and difficult conversations."
She adds: "When we have these controversies, it is up to us to resolve them. Not the courts, not the police, but us."
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The history of the first amendment is populated by a rogues' gallery of provocateurs, crusaders, racists, and assorted scoundrels. These tend to be the kinds of people who exist at the outer edges of public discourse where the boundaries of constitutional protection of offensive speech may not be entirely clear.